Karnataka High Court
Sri Jayasheel Reddy vs Smt Sudharshini A on 27 October, 2025
Author: S Vishwajith Shetty
Bench: S Vishwajith Shetty
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NC: 2025:KHC:42498
WP No. 9209 of 2024
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF OCTOBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE S VISHWAJITH SHETTY
WRIT PETITION NO. 9209 OF 2024 (GM-CPC)
BETWEEN:
1. SRI JAYASHEEL REDDY
(WRONGLY MENTIONED AS JAYASHEEL G)
S/O K GOPAL REDDY
AGED ABOUT 44 YEARS.
2. SMT. SUMITHA K
W/O JAYASHEEL G
AGED ABOUT 39 YEARS.
BOTH ARE RESIDING
AT NO.121, 7TH AVENUE
RAINBOW, JUNNASANDRA
SARAJPURA ROAD
BANGALORE - 560 035.
...PETITIONERS
(BY SRI JANARDHANA G, ADV.)
AND:
Digitally signed
by NANDINI M 1. SMT. SUDHARSHINI A
S D/O T.M. ACHUTHAN
Location: HIGH W/O V. GOPAL KUMAR
COURT OF
KARNATAKA AGED ABOUT 58 YEARS
RESIDING AT 1ST FLOOR
NO. 1 AM 313, 3RD CROSS
KASTHURI NAGAR,
EAST OF NGEF, BENGALURU - 560 043.
2. SRI T.M. ACHUTHAN
S/O LATE KARUNAKARAN
AGED ABOUT 83 YEARS.
3. SMT. AMBIKA
(SINCE DECEASED)
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WP No. 9209 of 2024
HC-KAR
4. SRI A. UDAY KUMAR
S/O T.M. ACHUTHAN
AGED ABOUT 55 YEARS.
RESPONDENT NOs2 TO 4 ARE
RESIDING AT NO. 1, AM-313
GROUND FLOOR, 3RD CROSS
KASTHURI NAGAR, EAST OF NGEF
BENGALURU - 560 043.
...RESPONDENTS
(BY SRI NAGARAJ S, ADV., FOR R-1;
SRI JAGADISH KUMAR, ADV., FOR R-4)
THIS WP IS FILED UNDER ARTICLE 227 OF THE CONTITUTION
OF INDIA PRAYING TO QUASH THE ORDER 17/02/2024 PASSED BY
THE ADDL. CITY CIVIL AND SESSIONS JUDGE (CCH-29),
BENGALURU IN OS NO. 25657/2020 VIDE ANNEXURE-D.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING,
THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE S VISHWAJITH SHETTY
ORAL ORDER
1. This writ petition under Article 227 of the Constitution of India is filed by defendant nos.4 and 5 with a prayer to set aside the order dated 17.02.2024 passed in O.S.No.25657/2020 by the Court of Addl. City Civil & Sessions Judge, Bengaluru.
2. Heard the learned counsel appearing for the parties. -3-
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3. Suit in O.S.No.25657/2020 is filed by respondent no.1 herein before the jurisdictional civil Court at Bengaluru seeking the relief of partition, separate possession, declaration and for consequential relief of permanent injunction against the defendants. In the said suit, contesting defendants have filed a detailed written statement opposing the said claim. During the course of plaintiff's evidence, a document styled as Memorandum of Family Settlement was sought to be marked on behalf of the plaintiff and the same was opposed by the defendants on the ground that the said document is a compulsorily registrable document as provided under Section 17 of the Registration Act, 1908. The Trial Court vide order impugned had rejected the objections raised on behalf of the defendants for marking of document styled as Memorandum of Family Settlement with an observation that admissibility of document as evidence is kept open and the document is marked subject to objections. Being aggrieved by the said impugned order dated 17.02.2024 passed in O.S.No.25657/2020, defendant nos.4 and 5 are before this Court.
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4. Learned counsel for the petitioners having reiterated the grounds urged in the petition submits that the document in question is a compulsorily registrable document and he has referred to Section 17 of the Registration Act, 1908 in support of his arguments. He submits that once a document is marked even the question with regard to admissibility of the document as evidence cannot be raised. He has referred to Sections 33, 34 and 35 of the Karnataka Stamp Act in support of his arguments. He has also placed reliance on the judgment of this Court in the case of B. TIPPESWAMY V. GOWRAMMA
- 2008(6) KAR. L.J. 552 in support of his arguments.
5. Per contra, learned counsel for the contesting respondents has opposed the prayer made in the petition and has argued in support of the impugned order.
6. The document which is said to be marked on behalf of the plaintiff is said to be a Memorandum of Family Settlement and according to defendants, the said document is a compulsorily registrable document as provided under Section 17(2) of the Registration Act. Even it is presumed that, the -5- NC: 2025:KHC:42498 WP No. 9209 of 2024 HC-KAR document in question is compulsorily registrable document, the Trial Court has marked the document in question subject to objection, keeping open the admissibility of document as evidence.
7. Section 49 of the Registration Act provides for effect of non registration of document required to be registered and Section 49(c) of the Registration Act clearly states that no document required by Section 17 to be registered shall be received as evidence of any transaction affecting any such property or conferring such power, unless it has been registered.
8. From the aforesaid provision it is very clear that the document cannot be received as evidence, if the same is a compulsorily registrable document unless it has been registered.
9. In the case on hand, the document in question is only marked and admissibility of document as evidence has been kept open by the Trial Court. Marking of a document itself does not establish proof of said document. Marking of -6- NC: 2025:KHC:42498 WP No. 9209 of 2024 HC-KAR document is a ministrial act of the Court and the same would not amount to proof of said document.
10. In the case of B. TIPPESWAMY (supra) this Court has considered the question of admissibility of a document which is not registered and also of admissibility of a document which is not properly stamped and the question of marking such a document subject to proof of admissibility of document as evidence has not been considered.
11. The Hon'ble Supreme Court in the case of G.M. SHAHUL HAMEED V. JAYANTHI R. HEGDE reported in 2024 INSC 493 considering Sections 33, 34 & 35 of the Karnataka Stamp Act has held that, notwithstanding Section 35 of the said Act, even if a document which is insufficiently stamped is marked without there being any proper adjudication by the Court concerned, it is always open for the said Court to take action as provided under Section 33 the Act to impound the document and to call upon the parties to pay deficit stamp duty and penalty on the document, which is already marked. -7-
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12. Similar view has been taken by the Hon'ble Supreme Court in the case of BIDYUT SARKAR & ORS V. KANCHILAL PAL (DEAD) THROUGH LRS. & ORS (2024) INSC 704, wherein a reference was made to Section 36 of the Indian Stamp Act which is in pari materia to Section 35 of the Karnataka Stamp Act, and in paragraph no.29 it is observed as follows:
"29. The Trial Court had placed reliance upon the aforesaid two judgments and had also extracted the relevant part from the said judgments. The facts in the 1978 case of Ram Rattan (dead) by L.Rs. (supra) were quite similar wherein an instrument had been exhibited with objection but therein also the said objection had not been removed or cured. This Court held that such an instrument would not be admissible in evidence and Section 36 of the Stamp Act would not be attracted. The relevant paras of this judgment are reproduced below:
6. When the document was tendered in evidence by the Plaintiff while in witness box, objection having been ralised by the Defendants that the document was inadmissible in evidence as it was not duly stamped and for want of registration, it was obligatory upon the learned Trial Judge to apply his mind to the objection raised and to decide the objects in accordance with law.
Tendency sometimes is to postpone the decision to avoid interruption in the process of recording evidence and, therefore, a very convenient device is resorted to, of marking the document in evidence subject to objection. This, however would not mean that the objection as to -8- NC: 2025:KHC:42498 WP No. 9209 of 2024 HC-KAR admissibility on the ground that the instrument is not duly stamped is judicially decided; it is merely postponed. In such a situation at a later stage before the suit is finally disposed of it would none-the-less be obligatory upon the court to decide the objection. If after applying mind to the rival contentions the trial court admits a document in evidence, Section 36 of the Stamp Act would come into play and such admission cannot be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped. The court, and of necessity it would be trial court before which the objection is taken about admissibility of document on the ground that it is not duly stamped, has to judicially determine the matter as soon as the document is tendered in evidence and before it is marked as an exhibit in the case and where a document has been inadvertently admitted without the court applying its mind as to the question of admissibility, the instrument could not be said to have been admitted in evidence with a view to attracting Section 36 (see Javer Chand v. Pukhraj Surana) [ MANU/SC/0036/1961: 1961:INSC: 183: AIR 1961 SC 1655). The endorsement made by the learned Trial Judge that "Objected, allowed subject to objection", clearly indicates that when the objection was raised it was not judicially determined and the document was merely tentatively marked and in such a situation Section 36 would not be attracted."
13. In the case on hand, the Trial Court had overruled the objection raised by defendants for marking of the said document and the question of admissibility of document as -9- NC: 2025:KHC:42498 WP No. 9209 of 2024 HC-KAR evidence is kept open and therefore it is always open for the defendants to urge the question of admissibility of the said document as evidence before the Trial Court at appropriate stage. Under these circumstances, I do not find any merit in this writ petition.
14. Accordingly, the writ petition is dismissed with an observation that parties are always at liberty to urge the ground of admissibility of document in question as evidence before the Trial Court and if such a contention is urged, the Trial Court shall consider the same in accordance with law at the appropriate stage.
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(S VISHWAJITH SHETTY) JUDGE NMS List No.: 1 Sl No.: 31